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Neade v. Portes

March 31, 1999


Appeal from the Circuit Court of Lake County. Nos. 92--L--1074 94--L--1103 Honorable Bernard E. Drew, Judge, Presiding.

The opinion of the court was delivered by: Justice Thomas


Plaintiff, Therese Neade, as the administrator of the estate of her deceased husband, Anthony Neade, appeals the circuit court's judgment dismissing portions of count I and all of count II of her amended complaint against defendants Steven Portes, M.D., and Primary Care Family Center, S.C. (Primary Care). At the times alleged in plaintiff's complaint, Dr. Portes was president of Primary Care. Count I alleged that defendants committed medical negligence, which caused the death of Anthony Neade. Count II alleged that Dr. Portes breached his fiduciary duty to Anthony Neade by failing to disclose that he had a contract with Neade's Health Maintenance Organization (HMO) that created an incentive to minimize diagnostic tests and specialist referrals. On appeal, plaintiff contends that the trial court erred in striking the allegations from count I of her amended complaint because those allegations adequately alleged a breach of the applicable standard of care. Plaintiff also contends that the trial court erred in dismissing count II of the amended complaint because that count stated a cause of action for breach of fiduciary duty.


Plaintiff's amended complaint alleged the following. Anthony Neade was approximately 37 years old in 1990 when he began to show the classic symptoms of coronary artery blockage, including chest pain radiating into his arm and shortness of breath. As a result, Neade was hospitalized from August 10 to 13, 1990. In addition to his physical symptoms, Neade had a family history of heart disease, was overweight, suffered from hypertension, smoked, and had a high cholesterol count. While in the hospital, Neade underwent various tests, including a thallium stress test. Dr. Thomas Engel (a defendant below but not a party to this appeal) interpreted the result as normal and discharged Neade with a diagnosis of hiatal hernia and/or esophagitis. Count III of plaintiff's amended complaint, which is not at issue in this appeal, alleged that Dr. Engel misinterpreted the thallium stress test and EKG data results. However, even if the test results were properly interpreted, plaintiff alleged that Dr. Portes knew that 20% of normal or negative thallium stress test results are false negatives.

Following his discharge from the hospital, Neade continued to experience chest pain and, therefore, saw Dr. Portes on August 17, August 28, and September 24, 1990. Dr. Portes did not examine Neade during these visits but, relying on the thallium stress test and EKG data, assured Neade that his chest pain was not cardiac related.

In October 1990, Neade again went to Primary Care complaining of stabbing chest pain. Dr. Portes asked his associate, Dr. George Huang, to examine Neade. Primary Care employed Dr. Huang part time, and he had no hospital privileges. After examining Neade, Dr. Huang recommended that he undergo an angiogram, a test that is more specific for coronary artery disease than the thallium stress test. Because Dr. Portes was Neade's primary care physician, however, Dr. Portes had to authorize any hospitalization or additional tests. Without examining Neade, Dr. Portes told Dr. Huang that the pain was not cardiac related and refused to authorize Neade's hospitalization for an angiogram.

In June 1991, Neade again returned to Primary Care, complaining of chest pain radiating up the right side of his neck and sweating when the pain was great. At Dr. Portes's request, Dr. Seymour Schlager, another part-time employee of Primary Care, saw Neade. Dr. Schlager also recommended hospitalization for an angiogram, but Dr. Portes again refused to authorize hospitalization. Without examining Neade and relying on the thallium stress test, Dr. Portes advised Dr. Schlager that Neade's chest pain was not cardiac related.

Count I of plaintiff's amended complaint alleged that Dr. Portes's reliance on the thallium stress test and the EKG and his failure to authorize an angiogram constituted medical negligence. Further, as a proximate result of defendants' medical negligence, Neade suffered a massive myocardial infarction caused by coronary artery blockage on September 16, 1991. Neade died nine days later.

The allegations that were stricken from count I of plaintiff's amended complaint alleged that Dr. Portes, as president of Primary Care, negotiated and entered into contracts with various entities, including Chicago HMO. That contract provided a capitation fee for subscribers of Chicago HMO who utilized defendants' services, as well as a "Medical Incentive Fund," which was to be used for various purposes, including certain tests and referrals to medical specialists. The contract further provided that any monies left in the Medical Incentive Fund at the end of the 12-month contract period would be split 60-40 between defendants and Chicago HMO. Neade's health care insurance was through Chicago HMO. Therefore, if Neade received an angiogram and a referral to a specialist, those fees would be paid from the Medical Incentive Fund administered by defendants.

Count II of plaintiff's amended complaint alleged that a fiduciary relationship existed between Dr. Portes and Neade pursuant to which Dr. Portes had a duty to act in good faith and in the best interest of Neade. Plaintiff alleged that Dr. Portes breached his fiduciary duty by refusing to authorize further testing of Neade, refusing to allow specialists to examine Neade, failing to disclose to Neade defendants' financial relationship with Chicago HMO, including the Medical Incentive Fund, and entering into a contract with Chicago HMO which put defendants' financial well-being in direct conflict with Neade's physical well-being. Plaintiff claimed that as a proximate result of defendants' breach of fiduciary duty, Neade suffered a massive myocardial infarction and died.

Dr. Portes and Primary Care moved to strike from count I the allegations regarding the Medical Incentive Fund and to dismiss Count II entirely. Defendants argued that any financial motive was irrelevant to whether Dr. Portes violated the applicable standard of care in treating Neade. Defendants also argued that there was no cause of action against a physician for breach of fiduciary duty. The trial court granted defendants' motion as to both counts with prejudice.

Plaintiff then filed a motion to reconsider, attaching to the motion plaintiff's affidavit and excerpts of the deposition of Dr. Jay Schapira. Dr. Schapira testified that the applicable standard of care, as well as ethical considerations, required a doctor to divulge his financial interest in withholding care so that a patient could make an informed decision concerning the quality of care he is receiving and concerning the doctor's true motivation in treating him. Plaintiff's affidavit stated that had she known of Dr. Portes's financial interest in refusing to authorize additional treatment for decedent, she would have sought a second opinion. Plaintiff also filed a proposed "supplement" to the complaint incorporating these additional allegations. Defendants filed a motion, which the trial court denied, to strike the deposition excerpt and affidavit from plaintiff's motion to reconsider. However, after considering those materials, the court denied the motion to reconsider. Plaintiff timely appealed.


Initially, defendants contend that we lack jurisdiction to consider the court's order with regard to count I. Defendants note that the trial court's original dismissal order striking sections of count I and dismissing all of count II of plaintiff's complaint was with prejudice but contained Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) language only with respect to count II. In its subsequent order denying plaintiff's motion for reconsideration, however, the trial court stated that its prior order striking portions of count I and dismissing count II remained a final and appealable order pursuant to Rule 304(a) (155 Ill. 2d R. 304(a)). Defendants claim that because the orders are ambiguous and because the bases for recovery of the stricken portions of count I are the same as the remaining portions of count I, the trial court's order with respect to count I cannot be a final and appealable order as a matter of law.

Rule 304(a) provides that if multiple claims for relief are involved in an action, a party may appeal a final judgment as to one or more but fewer than all of the claims only if the trial court has made an express written finding that there is no just reason to delay enforcement or appeal of its order. 155 Ill. 2d R. 304(a). Thus, where separate counts in the same complaint contain different bases of recovery, and where the trial court makes the requisite finding, the dismissal of a count in the complaint is appealable because it disposes of a distinct cause of action. Viirre v. Zayre Stores, Inc., 212 Ill. App. 3d 505, 511 (1991).

We note that Rule 304(a) speaks in terms of "claims," and not "counts." Therefore, even though the trial court struck only portions of count I of plaintiff's amended complaint, those stricken portions, along with Count II, clearly resolved a distinct portion of the controversy between the parties: whether defendants are liable for failing to disclose the existence of the Medical Incentive Fund. Accordingly, because the trial court's order disposed of a distinct claim against defendants, and the trial court made an express written ...

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